This article analyzes copyright law as a growing burden on free speech institutions such as newspapers, television stations, websites, and software platforms. Free speech institutions, including websites, allow residents of the United States to engage in a variety of activities: read, watch, access, write, perform, display, transform what has been written, and publish what is written or transformed. Some of these activities—for example, making a video commentary on a recent political speech out of popular film clips—make up “remix” or “read-write” culture. Copyright law potentially outlaws the unauthorized reading, watching, performing, transforming, or publishing of existing work. Unless fair use reliably allows people to remix our culture without risk of liability, it will stand in need of reform.

Emerging copyright norms could harm the freedom and diversity of the Internet. In an era of supposed overregulation of business by Washington, a surprisingly large number of corporations and trade associations are proposing restrictive copyright norms. In this way, groupings of media and Internet corporations have become prolific sources of proposed norms governing Internet speech and communication. Among other efforts, the Motion Picture Association of America and the Recording Industry Association of America have led a coalition of “creative community organizations” asking the Obama administration to pressure websites such as YouTube to agree to a series of Principles for User-Generated Content Services (UGC Principles), which were negotiated between the Microsoft Corporation and a series of media conglomerates including NBC Universal and Viacom. Among other things, the UGC Principles call for automatic deletion (or filtering) of quotations of media content in audio or audiovisual form, without consistent regard to fair use or other exceptions to copyright. While some users may be on notice and willing to tolerate such deletions, other users would prefer a hearing in court as movie studios and book publishers receive in cases of alleged plagiarism of screenplays, novels, or background art. Several publisher associations and an Open Book Alliance made up of Amazon.com, Microsoft, Yahoo!, and various partner organizations filed briefs in federal court arguing that Google should be restricted from contracting with publishers to create digital libraries of books. The Media Bloggers Association, Newspaper Association of America, and other groups have made various proposals that fair use or the public domain of facts and ideas be restricted online in ways that are contrary to established customs in print and on television, as well as online. Media corporations asked the Federal Communications Commission to enact a National Broadband Plan that would allow Internet filters to prohibit the use of fair use clips. These corporations want universities to use “in-house methods of blocking infringing [Internet] transmissions and/or blocking and filtering technologies offered in the marketplace[.]”

This Article therefore describes the risk of non-price-related restraints on upstart Internet and social media companies such as a requirement to filter out quotations. Such restraints do not burden incumbents like the Associated Press, Comcast-NBCU, or Viacom, which do not confront prepublication filtering of their newspaper articles, television programs, or motion pictures. Antitrust cases and constitutional doctrine are slow to evolve, however. For this reason, the Article calls for reform of the fair use privilege of free speech institutions in four key areas: burden of proof, due process, liability standards, and injunctive relief. The reforms are intended to serve core constitutional values: liberty of expression, the right to petition the government for redress of grievances, communicative privacy, separation of powers, and the rule of law.

This article focuses on two failed attempts during the Cold War to mitigate the severity of minority-led secessionist wars by punishing the crime of genocide. The failures involved the secessions of East Pakistan and Biafra. In these conflicts, the crime of genocide proved to be impossible to prevent or punish in the absence of a standing international criminal tribunal. Minority leaders in Nigeria and Pakistan made unsuccessful efforts to get military dictators charged with genocide. These attempts failed, as backing by permanent members of the United Nations (UN) Security Council rendered the devastation of entire regions of the world immune from the reach of world justice, even after the deaths of hundreds of thousands. Although the laws failed, the debate contributed to international action to prevent the total destruction of the victim groups.

Critics of British and American policy in Africa, including most letter writers to the US Congress, supported Biafra. Senator Edward Kennedy argued shortly after the election of President Nixon that 10,000 were dying each day, and that this might reach 25,000 per day. He proposed an international arms embargo on Nigeria, and argued that ten million Biafran people had suffered famine and attacks. Senator Eugene McCarthy condemned US policy as an open “acceptance of the death of millions”....

The genocide in Bangladesh was also significantly larger in absolute terms than those in Rwanda or the former Yugoslavia, if the upper end of estimates of the dead is used for each case. Diplomats estimated that the Pakistani army killed 200,000 Bengalis in less than three months. The total death toll including hunger and disease was one to three million....

The US Consul in Dacca reported to the Secretary of State that “non-Bengali Muslims are systematically attacking poor people’s quarters and murdering Bengalis and Hindus”.... An official on a USAID contract in Pakistan reported in 1971 that “the mass killing of unarmed civilians, the systematic elimination of the intelligentsia, and the annihilation of the Hindu population is [sic] in progress”.

Could racial or religious bias within the United Nations be hindering efforts to prevent and punish the crime of genocide? I answer this question by surveying the UN response to a variety of alleged genocides, ranging from Biafra starting in the late 1960s to Syria starting in 2012. In terms of quantitative analysis, this article explores whether the UN response to claims of genocide is proportionate to the scale of actual harm, using absolute death tolls and percentage reductions in the populations of specific minority groups to assess harm. It finds that voting blocs based on racial or religious identity may be warping the UN response to potential genocides, resulting in disproportionate attention across cases. In this regard, the Arab League, the Non-Aligned Movement, and the Republic of Turkey appear to play important roles in shaping UN responses. In terms of qualitative analysis, the article surveys evidence that key actors at the United Nations may have been motivated by bias in framing collective responses to claims of genocide and other mass violence.

This article analyzes claims that the Internet is destroying the book publishing, music, and movie industries, and that it needs to be strictly regulated by civil and criminal copyright laws to save companies and jobs. I survey empirical evidence that copyright industry sales and profits have increased, that economic trends other than infringement on the Internet drive fluctuations in music sales, and that the incentives to produce copyrighted work do not respond directly to minor variations in copyright doctrine or to significant new copyright enforcement laws.

The article analyzes ten fundamental myths used to justify Internet censorship and draconian copyright reforms. Four of these myths concern the allegedly negative relationship between Internet usage of various kinds and declining profitability or sales at old media firms. Three of the myths are designed to motivate Congress or the courts to endorse restrictions on Internet content using the justification that old media will benefit from such restrictions, thereby creating jobs and economic growth. The final three myths involve false assumptions that criminalizing Internet activity will save old media firms. Among other evidence that is useful to dispel these myths, this article examines: book and audiovisual media consumption in the aggregate; the continued growth of old-media entertainment sales such as books, music transactions, and entertainment subscriptions or admissions despite massive growth in Internet use since 1994; the findings of regression analyses exploring the relationship between Internet file-sharing software use and the music industry’s retail sales; socioeconomic trends other than Internet use that may explain changes in the level of music sales in the United States; an empirical disconnect between the level of Internet-based infringement of recording industry copyrights and the level of U.S. record labels’ sales; the sales, total employment, profits, and market capitalization of firms in the U.S. film and television sectors in an environment of large-scale Internet-based copyright infringement; survey results suggesting that musicians may not see music file-sharing as having a severe impact on their livelihoods; the effects of copyright term extension on the number of feature films released and the aggregate investment in creating and marketing them in the United States, as well as on the number of films released in Europe; the lack of a correlation between copyright criminalization and subsequent reductions in Internet-based infringement in the United States; and the benefits, if any, of a draconian new copyright-enforcement regime in France from the standpoint of film and music production and sales.

This article analyzes the Innovation Act, which passed the U.S. House of Representatives on a promise to deal with the problem of patent trolls or non-practicing entities (NPEs). The article surveys the NPE controversy from a variety of perspectives, including the history and theory of transactions in real property. Part II raises several economic issues relevant to the proposed NPE legislation, including the need for owners to alienate the legally-enforceable rights they acquire, and the dynamic benefits of property alienability notwithstanding short-term administrative costs. Part III describes a decade of reforms that led up to the Innovation Act, with a particular focus on critiques of patent enforcement in general and NPEs in particular. Part IV responds to these concerns by surveying legal doctrines that may blunt the allegedly adverse effects of patent litigation. The article concludes that current efforts may not be as beneficial to innovation as has been advertised. Recent interpretations of the Patent Act of 1952, including CLS Bank and KSR in particular, provide adequate tools with which the courts may address the alleged abuses by NPEs.

This chapter in a forthcoming book attempts to map global patterns by which local tyrannies become sources of potentially global infringements on freedom of expression, particularly but not exclusively on the YouTube Web site. It illustrates certain parallels between the efforts to force copyright filters on YouTube and the Web in the West, and to harden the Great Firewalls of China, Arabia, and Persia in the East. The parallels include preemptive filtering, deep packet inspection, overbroad restrictions, and harms to user privacy.

Generally speaking, blasphemy and seditious libel are the dominant forms of censorship in the impoverished and/or dictatorial societies of Africa and central and southern Asia, with insulting the great leader similarly controversial at the fringes of Asia including China, Thailand, and Turkey, and in the South Atlantic including Colombia, Honduras, and Zimbabwe. By contrast, intellectual property is prompting many of the Web site takedowns for political and cultural speech in the North Atlantic including Europe and the United States. Resistance to censorship around the world employs both legal and extra-legal tactics. Internet freedom has worked its way into our constitutional and statutory law in the North Atlantic and Europe, and parts of Africa, Latin America, and Asia. Therefore, a judicial consensus is emerging that freedom of expression must rein in the enforcement of corporate catalogs of intellectual property rights.

In large swaths of Africa and Asia, however, constitutions often do not mandate robust judicial protection of freedom of expression, so public intolerance of censorship presents a more direct battle of forces. In these societies, self-help, surreptitious defense of new public spheres, trans-border cooperation, and voting with one’s feet are more likely to succeed than filing lawsuits or asserting constitutional rights. In some places, YouTube bans and shutdowns of the entire Internet have happened, sometimes with aid from foreign Web firms, and occasionally with US diplomatic support.

The U.N. Declaration on the Rights of Indigenous Peoples requires states to provide an effective remedy to indigenous peoples deprived of their cultural, religious, or intellectual property (IP) without their free, prior and informed consent. The Declaration could prove to be important safeguard for the indigenous peoples of Iraq and Turkey, the victims for centuries of massacres, assaults on their religious and cultural sites, theft and deterioration of their lands and cultural objects, and forced assimilation. These peoples, among them the Armenians, Assyrians, Greeks, and Yezidis of Turkey and Turkish-occupied Cyprus, and the Armenians, Assyrians, Yezidis, and Mandaeans of Iraq, have lost more than two-thirds of their peak populations, most of their cultural and religious sites, and thousands of priceless artifacts and specimens of visual art.

The European Union has probed these violations of indigenous people's rights as part of the process of bringing Turkish laws and policies into compliance with European human rights standards. The United States has investigated violations of the rights of Iraq’s indigenous peoples in reports issued by the various executive agencies and legislative committees.

My paper will summarize the results of these inquiries, and propose four reforms. First, restitution or compensation should be implemented for the widespread destruction of indigenous peoples’ cultural and intellectual properties by previous Turkish and Iraqi regimes. Second, efforts to promote the security of indigenous peoples’ surviving intellectual and cultural patrimony must be adopted. Third, transnational corporations and other large enterprises such as museums and publishers should respect the rights of indigenous people to protect, access, and use their cultural and intellectual property held outside of Turkey and Iraq. Fourth, policies within Turkey and Iraq that restrict the preservation and transmission of indigenous cultural and intellectual manifestations must be reformed or abolished.

This article also describes the growing body of law governing indigenous peoples' rights, particularly in Europe. Applicable general international law standards are set forth in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, the the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Hague Convention with Respect to the Laws and Customs of War on Land, the Hague Regulations Respecting the Laws and Customs of War on Land, the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, the Convention for the Protection of Cultural Property in the Event of Armed Conflict, the Convention on Biodiversity, the ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, and the United Nations Declaration on the Rights of Indigenous Peoples.

European standards are embodied in the European Convention on Human Rights and Fundamental Freedoms, the Copenhagen principles on human rights in the EU, the Framework Convention for the Protection of National Minorities, the OSCE Oslo Recommendations Regarding the Linguistic Rights of National Minorities, and the Council of the European Union's Framework decision on Racism and Xenophobia. In the United States, additional standards are set forth in the Foreign Relations Act of 1961, the International Religious Freedom Act of 1998, the Alien Tort Claims Act, and the Torture Victims Protection Act.

The Ottoman Empire's widespread persecution of Assyrian civilians during World War I constituted a form of genocide, the present-day term for an attempt to destroy a national, ethnic, or religious group, in whole or in part. Although there were no extermination camps on the scale of Auschwitz, the genocide of the Assyrians resembled the Holocaust of Jews, Slavs, Roma people, leftists, homosexuals, and other minorities under Nazi occupation during World War II because Ottoman soldiers and their Kurdish and Persian militia allies subjected hundreds of thousands of Assyrians to a deliberate and systematic campaign of massacre, torture, abduction, deportation, impoverishment, and cultural and ethnic destruction. According to the American ambassador to Constantinople from 1913 to 1916, Henry I. Morgenthau, widely regarded as a principal source of information on the Armenian genocide: "The story which I have told about the Armenians I could also tell with certain modifications about the Greeks and the Syrians," as Assyrians were often known to the West. He added that the Ottoman Empire "decided to apply the same methods [of "wholesale massacre"] on a larger scale not only to the Greeks but to the Armenians, Syrians, Nestorians [i.e., Assyrians], and others of its subject peoples." In 1918, according to the Los Angeles Times, Ambassador Morgenthau confirmed that the Ottoman Empire had "massacred fully 2,000,000 men, women, and children¿Greeks, Assyrians, Armenians; fully 1,500,000 Armenians."

This article will argue that the hesitation to recognize the Assyrian genocide is unjustified, for the evidence is overwhelming that Turks and their Kurdish allies massacred hundreds of thousands of Assyrians in order to exterminate the Christian population; raped and enslaved thousands of Assyrian women in a systematic fashion; and deported the Assyrians en masse from their ancestral lands under conditions that led to famine and widespread death. Established principles of international law outlawed this war of extermination against Ottoman Christian civilians before it was embarked upon, and ample evidence of genocidal intent has surfaced in the form of admissions by Ottoman officials. Nevertheless, the international community has been hesitant to recognize the Assyrian experience as an instance of genocide. The more rapid legal recognition of the Armenian genocide is attributable to the larger numbers of Armenian victims and survivors, the dispersion and political voicelessness of the Assyrian people, and more copious evidence of an intention on the part of the Ottomans to wipe out the Armenians.

In conclusion, I will contend that the legal and historical recognition of the Assyrian genocide at the hands of the Ottomans is vital to focus the world's attention on the Assyrian remnant in Iraq. That remnant has been scattered by more than a century of massacre, discrimination, and religious persecution into non-viable communities that are still waiting for their homelands and human rights to be restored. U.S. officials have documented an "ethnic-cleansing campaign" against Assyrians in present-day Iraq, with "systematic attacks" against Assyrian civilians, bombings of Assyrian churches, and the driving of most Assyrians out of Iraq. Genocide and ethnic cleansing give rise to legally enforceable claims for reparation and restoration of property and the value of lives lost. But because their genocide has rarely been recognized, the Assyrians driven from their homes over the past century have received relatively little by way of compensation or assistance with rebuilding. This article calls upon the international community to focus its efforts on the security and resettlement of the Assyrian people.

This article analyzes the claim that the Bush doctrine, the declaration of President George W. Bush in September 2001 that all states harboring terrorists or otherwise supporting terrorism would see their leaders replaced by force, has profoundly advanced the cause of human rights in Afghanistan and Iraq. The article focuses on the constitutional process in Afghanistan, and its thesis is that the Afghan constitution symbolizes the unmistakable liberation of Afghanistan's people from the despotic and even genocidal rule of the Taliban, but that the constitution's many provisions requiring compatibility of government policy with an unspecified code of Islamic law may frustrate democratic demands for respect for international human rights standards and the country's civil law traditions. These provisions are particularly dangerous in the hands of the Afghan religious fundamentalists that have been elevated to prominent positions in the post-Taliban political and legal system. The article proposes four test cases for judging the implementation of Afghanistan's new constitution from the perspective of democracy and individual rights: the treatment of secular political parties, the use of blasphemy laws to undermine Afghan democracy, the revival of fundamentalist punishments such as stoning and amputation, and the ongoing oppression and enslavement of Afghan women and girls. It concludes by drawing parallels between the Afghan constitutional process and the political and legal transition of Iraq from a Baathist dictatorship into a so-called Islamic democracy. As in Afghanistan, the Iraqi government installed by the U.S. and its allies has established Iraq as a religious state with judicial review of legislation for conformity to an unspecified version of Islamic law, and Iraqi women and religious minorities continue to face grave violations of their human rights.